Federal Register Vol. 82, No.101,

As amended by the Energy Efficiency Improvement Act of 2015, Public Law 114-11 (April 30, 2015), the Energy Policy and Conservation Act (“EPCA” or, in context, “the Act”), Public Law 94-163 (42 U.S.C. 6291-6309, as codified), authorizes DOE to issue a direct final rule establishing an energy conservation standard for a product on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary of Energy (“Secretary”). That statement must contain recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. A notice of proposed rulemaking (“NOPR”) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule and a public comment period of at least 110 days provided. 42 U.S.C. 6295(p)(4). Not later than 120 days after issuance of the direct final rule, if DOE receives one or more adverse comments or an alternative joint recommendation is received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law.

When making a determination whether to withdraw a direct final rule, DOE considers the substance, rather than the quantity, of comments. To this end, DOE weighs the substance of any adverse comment(s) received against the anticipated benefits of the consensus recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously published NOPR. DOE must publish in the Federal Register the reasons why the direct final rule was withdrawn.

DOE determined that it did not receive any adverse comments providing a basis for withdrawal as described above for the direct final rule that is the subject of this document—residential central air conditioners (“CACs”) and heat pumps (“HPs”). As such, DOE did not withdraw the direct final rule and allowed it to go final on its effective date. Although not required under EPCA, DOE customarily publishes a summary of the comments received during the 110-day comment period and its responses to those comments.1 This document contains such a summary, as well as DOE's responses.

During the rulemaking proceeding to consider amended energy conservation standards for CACs and HPs, DOE received a statement submitted by an Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) that a consensus had been reached by a negotiated rulemaking working group for CACs and HPs (the “the CAC/HP Working Group” or, in context, the “Working Group”). The CAC/HP Working Group consisted of 15 members, including one member from ASRAC and one DOE representative, with the balance comprising representatives of manufacturers of the covered products at issue, efficiency advocates, and utility representatives. The CAC/HP Working Group submitted to ASRAC a Term Sheet, that, in the commenters' view, would satisfy the EPCA requirements at 42 U.S.C. 6295(o), and ASRAC voted unanimously to adopt these consensus recommendations. (CAC/HP Term Sheet, Docket No. EERE-2014-BT-STD-0048, No. 0076)

After careful consideration of the Term Sheet related to amended energy conservation standards for CACs and HPs, the Secretary has determined that the recommendations contained therein are compliant with 42 U.S.C. 6295(o), and were submitted by interested persons who are fairly representative of relevant points of view on this matter, as required by 42 U.S.C. 6295(p)(4)(A)(i) for the issuance of a direct final rule.

DOE conducted separate test procedure rulemakings simultaneously with the energy conservation standard rulemaking to amend the DOE central air conditioners and heat pumps test procedure. As per the request of the CAC/HP Working Group, the analyses documented in this direct final rule are based on the DOE test procedure at the time of the 2015-2016 Negotiations. Efficiency levels selected on the basis of these analyses were then translated to efficiency levels based on the amended test procedure. This methodology was first advocated by Carrier/United Technologies Corporation (“UTC”) and adopted by stakeholders during the Negotiations. (ASRAC Public Meeting, No. 87 at p. 48) This methodology is also reflected in the CAC/HP Term Sheet. Thus, DOE notes that while amended standard levels presented in Table III-1 in this notice (and in the Table I-1 of the direct final rule) are in terms of the test procedure that was in place at the time of the CAC/HP Working Group Negotiations, the standard levels added to the regulatory text are in terms of the test procedure as amended.

Ultimately, DOE found that the standard levels recommended in the Term Sheet would result in significant energy savings and are technologically feasible and economically justified. Table II-1 documents the amended standards for central air conditioners and heat pumps based on the DOE test procedure at the time of the 2015-2016 Negotiations. The amended standards correspond to the recommended trial standard level (“TSL”) and are expressed in terms of Seasonal Energy Efficiency Ratio (“SEER”), Energy Efficiency Ratio (“EER”), and Heating Seasonal Performance Factor (“HSPF”). The amended standards are the same as those recommended by the Working Group. These amended standards will apply to all central air conditioners and heat pumps listed in Table II-1 and manufactured in, or imported into, the United States starting on January 1, 2023. The amended standards listed in Table II-1 will result in less energy consumption for these products than the current standards, which remain in effect until January 1, 2023.

Of the 24 substantive comments received in response to the direct final rule, 20 were from interested parties that expressed support for the direct final rule and its outcome. (All comments are available for public viewing at https://www.regulations.gov/docket?D=EERE-2014-BT-STD-0048.) Among these commenters, eight manufacturers and one trade group all commented positively on finalizing the rule based on manufacturing certainty.

Three consumer groups, three utility representatives, three State representatives, and six environmental advocacy groups all commented in support of the significant economic benefits to consumers and ratepayers that the direct final rule would provide. In particular, the three consumer groups stated that that withdrawing the rule would increase the cost to taxpayers in initiating further rulemaking activity. The consumer groups also pointed out that life-cycle cost savings published in the direct final rule are realized in every region of the country and that total cost of ownership is lower with the amended standard. The utility representatives, states, and environmental advocates agreed, observing that the lower standard in the northern climate would alleviate costs to those customers, while the EER requirement in the hot southwest would reduce stress on the grid and other reliability problems with peak demand. The environmental advocates suggested that DOE had underestimated the benefits of the rule to consumers, due to the alignment of the refrigerant phase-outs.

Other interested parties submitted comments that did not support the CAC/HP direct final rule. The following sections discuss these specific comments and DOE's determination that the comments do not provide a reasonable basis for withdrawal of the direct final rule.

DOE received a comment from a manufacturer that attended many of the Working Group meetings. The manufacturer stated in its comments that it supported the rule generally but that the Working Group and the direct final rule should have excluded manufactured housing air conditioners based on the niche nature of the product and the potential inability of these products to meet the adopted efficiency levels. In response, DOE notes that the Working Group discussed this issue in detail. In recognition of the unique installation characteristics of manufactured home products that impact efficiency, the Working Group agreed to amend the accompanying test procedure to the direct final rule to require a lower default fan power value for manufactured homes (406 W/1000 CFM) compared to more conventional products addressed by the direct final rule (i.e. split systems). This difference will enable manufacturers of these products to obtain more representative results under the modified test procedure by accounting for the unique characteristics of these systems—the net effect of which would be to mitigate the penalizing effect of the current procedure. DOE proposed the new, unique default fan power value for manufactured home products in a related August 2016 CAC/TP test procedure supplemental notice of proposed rulemaking and received comments in support of its approach from other manufacturers of manufactured housing air conditioners, leading it to finalize it in the January 2017 CAC/HP test procedure final rule. See 82 FR 1426 (Jan. 5, 2017). Thus, because the comment has already been accounted for in other rulemaking proceedings, DOE does not consider this comment to provide a basis for withdrawal.

Two think tanks and one individual generally commented that the costs (regulatory and consumer) published in the CAC/HP direct final rule were too high. In particular, one commenter suggested that the high conversion costs required from manufacturers could result in an INPV decline and manufacturers would move production outside the United States. Two other commenters noted that consumers could see price increases in central air conditioners due to higher installed costs; one commenter additionally noted that the percent of negatively impacted consumers did not justify the TSL levels published in the CAC/HP direct final rule. Finally, one commenter stated that DOE did not meet the rebuttable presumption laid out in EPCA.

In response, DOE notes that all of these issues were discussed in detail during the Working Group negotiations. Those discussions recognized that, although consumers in some regions would bear a higher net cost than consumers in other regions, the national average at the recommended TSL is cost-justified when examining the standard articulated in the direct final rule as a whole. DOE notes that EPCA does not require it to choose the standard level with the least consumer cost, or the least cost to manufacturers, but only to assess those, among other costs and benefits (using the 7 factors articulated at 42 U.S.C. 6295(o)) and determine whether the burdens outweigh the benefits. In this case, the recommended TSL met that standard, and DOE's analysis and conclusions would not change based on the comments received. Thus, DOE does not consider these comments to provide a basis to justify a withdrawal of this direct final rule under EPCA.

DOE received a comment from an individual who commented that consumers and those representing consumers' interests did not have input in the rulemaking process, and thus the Working Group Term Sheet was not a “statement submitted jointly by interested persons that are fairly representative of relevant points of view.” In response, DOE disagrees and believes that (1) consumers' interests were represented in the rulemaking process and; (2) that the Working Group Term Sheet was a consensus recommendation made by interested persons fairly representative of relevant points of view. Although consumer groups were not direct signatories to the Term Sheet, the ASRAC Committee approving the CAC/HP Working Group's recommendations included one member representing Consumers' Union. In addition, representatives of State governments participated in the Working Group, who directly represent the consumers that live in those states. DOE also received many comments from members of the public and other consumer advocacy groups in support of the direct final rule.

EPCA directs DOE to consider any lessening of competition that is likely to result from new or amended standards. It also directs the Attorney General of the United States (“Attorney General”) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) For the direct final rule discussed in this document, DOE published a NOPR containing energy conservation standards identical to those set forth the direct final rule and transmitted a copy of the direct final rule and the accompanying technical support document (“TSD”) to the Attorney General, requesting that the U.S. Department of Justice (“DOJ”) provide its determination on this issue. DOE has published DOJ's comments at the end of this document.

DOJ reviewed the new standards in the direct final rule and the direct final rule TSD discussed in this document. As a result of its analysis, DOJ concluded that the new standards issued in this direct final rule are unlikely to have a significant adverse impact on competition. DOJ further noted that the standards established in this direct final rule were the same as recommended standards submitted in the consensus recommendations signed by industry participants who believed they could meet the standards (as well as other interested parties).

DOE notes that the direct final rule discussed in this notice preceded Executive Order 13783's requirement to revise future analyses involving carbon monetization. See 82 FR 16093 (March 31, 2017). The direct final rule included an analysis that examined the impacts associated with the social cost of carbon. These values, which were ancillary to the primary analyses that DOE conducted to determine whether the standards adopted in the rule were justified under the statutory criteria prescribed under 42 U.S.C. 6295(o), did not change the results of DOE's analyses. Accordingly, while the inclusion of these values helped in providing additional detail regarding the impacts from the rule, those details played no role in determining the outcome of DOE's decision under EPCA.

Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has determined that this direct final rule fits within the category of actions included in Categorical Exclusion (“CX”) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)-(5). This rule fits within the category of actions because it is a rulemaking establishing energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for them. DOE's CX determination that applies to this direct final rule is available at http://energy.gov/nepa/categorical-exclusion-cx-determinations-cx.

In summary, based on the discussion above, DOE has determined that the comments received in response to the direct final rule for new energy conservation standards for CAC and HPs do not provide a reasonable basis for withdrawal of the direct final rule. As a result, the energy conservation standards set forth in this direct final rule became effective on May 8, 2017. Compliance with the standards articulated in this direct final rule will be required on January 1, 2023.

As amended by the Energy Efficiency Improvement Act of 2015, Public Law 114-11 (April 30, 2105), the Energy Policy and Conservation Act (“EPCA” or, in context, “the Act”), Public Law 94-163 (42 U.S.C. 6291-6309, as codified), authorizes DOE to issue a direct final rule establishing an energy conservation standard for a product on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary of Energy (“Secretary”). That statement must contain recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. A notice of proposed rulemaking (“NOPR”) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule and a public comment period of at least 110 days provided. 42 U.S.C. 6295(p)(4). Not later than 120 days after issuance of the direct final rule, if DOE receives one or more adverse comments or an alternative joint recommendation is received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law.

When making a determination whether to withdraw a direct final rule, DOE considers the substance, rather than the quantity, of comments. To this end, DOE weighs the substance of any adverse comment(s) received against the anticipated benefits of the consensus recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously published NOPR. DOE must publish in the Federal Register the reasons why the direct final rule was withdrawn.

DOE determined that it did not receive any adverse comments providing a basis for withdrawal as described above for the direct final rule that is the subject of this document—miscellaneous refrigeration products (“MREFs”). As such, DOE did not withdraw this direct final rule and allowed it to become effective. Although not required under EPCA, DOE customarily publishes a summary of the comments received during the 110-day comment period and its responses to those comments.1 This document contains such a summary, as well as DOE's responses to those comments.

During the rulemaking proceeding to consider new energy conservation standards for MREFs, DOE received a statement submitted by an Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) negotiated rulemaking working group for MREFs (the “MREF Working Group” or, in context, the “Working Group”). The MREF Working Group consisted of 15 members, including two members from ASRAC and one DOE representative, with the balance comprising representatives of manufacturers of the covered products at issue, efficiency advocates, and a utility representative. The MREF Working Group submitted to ASRAC two Term Sheets, one of which contained recommendations with respect to new energy conservation standards for MREFs that, in the commenters' view, would satisfy the EPCA requirements at 42 U.S.C. 6295(o), and ASRAC subsequently adopted these consensus recommendations. (See “MREF Term Sheet”, EERE-2011-BT-STD-0043-0011).

Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must determine whether a jointly submitted recommendation for an energy or water conservation standard is in accordance with 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. As stated in the direct final rule, this determination is exactly the type of analysis DOE conducts whenever it considers potential energy conservation standards pursuant to EPCA. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that it adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in significant conservation of energy. Upon review, the Secretary determined that the consensus recommendations submitted in the MREF Term Sheet comports with the standard-setting criteria set forth under 42 U.S.C. 6295(o). Accordingly, the consensus recommendation efficiency levels, included as trial standard level (“TSL”) 2 for coolers and TSL 1 for combination cooler refrigeration products, were adopted as the new standard levels in the direct final rule. 81 FR 75194, 75252-75256 (Oct. 28, 2016).

As the relevant statutory criteria were satisfied, the Secretary adopted the new energy conservation standards for MREFs set forth in the direct final rule. These standards, which are expressed in maximum allowable annual energy use (“AEU”) in kilowatt-hours per year (“kWh/yr”) as a function of the calculated adjusted volume (“AV”) in cubic feet (“ft3”), are set forth in Table II.1 and Table II.2. The standards will apply to all products listed in Table II.1 and Table II.2 that are manufactured in, or imported into, the United States starting on October 28, 2019. For a detailed discussion of DOE's analysis of the benefits and burdens of the new standards pursuant to the criteria set forth in EPCA, please see the direct final rule. 81 FR 75194 (Oct. 28, 2016).

As required by EPCA, DOE also simultaneously published a NOPR proposing the identical standard levels contained in the direct final rule. 81 FR 74950 (Oct. 28, 2016). DOE considered whether any comment received during the 110-day comment period following the direct final rule was sufficiently “adverse” as to provide a reasonable basis for withdrawal of the direct final rule and continuation of this rulemaking under the NOPR. DOE subsequently determined that it did not receive any adverse comments that would provide a reasonable basis for withdrawal.

As discussed in section I of this document, not later than 120 days after issuance of the direct final rule, if DOE receives either (1) one or more adverse comments or (2) an alternative joint recommendation relating to the direct final rule within the prescribed 110-day comment period, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law.

Of the five substantive comments received in response to the direct final rule, four were from interested parties supporting the standard levels specified in the direct final rule as well as the process used to develop those standards. (All comments are available for public viewing at https://www.regulations.gov/docket?D=EERE-2011-BT-STD-0043.) Among these commenters, three (two manufacturers and an industry trade group) stated that the direct final rule standards would support the industry's goal of achieving a national marketplace for MREFs, prevent a patchwork of State regulations, and allow for future harmonization with Canadian regulations.2

Another interested party submitted comments questioning the product classes, standards, and analysis included in the direct final rule. The following sections discuss these specific comments and DOE's determination that the comments do not provide a reasonable basis for withdrawal of the direct final rule.

The interested party who criticized the rule commented that the product class structure and corresponding standards for coolers as specified in the direct final rule are not reasonable. It stated that vapor-compression products (i.e. those products using a compressor/condenser-based system) differ significantly from other non-compressor refrigeration products, such as thermoelectric (i.e. semiconductor-based) or absorption refrigeration products, in terms of testing and energy efficiency. Accordingly, in its view, DOE's rule should have included additional product classes to account for these differences. As an example of this approach, the interested party noted that the European Union's Energy Efficiency Directive No. 643/2009 and testing standard EN 62552-2013 include separate energy efficiency requirements for vapor-compression and non-compressor refrigeration products.

As discussed in the direct final rule, DOE considered whether separate product classes for non-compressor products were appropriate throughout this rulemaking. In the preliminary analysis, DOE did not identify any unique consumer utility associated with non-compressor refrigeration systems that would justify separate product classes for these products. The MREF Working Group discussed the topic of product classes, and agreed with DOE's determination from the preliminary analysis. Following the Working Group recommendation, DOE sought additional information regarding the consideration of non-compressor products in a notice of data availability (“NODA”). 80 FR 77589 (Dec. 15, 2015). DOE did not receive any information in response to the NODA indicating that separate non-compressor product classes would be justified. Consequently, in the absence of any information supporting the creation of non-compressor-based classes, DOE adopted the approach recommended by the Working Group, which led to the creation of the specific product classes detailed in the direct final rule. See 81 FR 75194, 75196 (Oct. 28, 2016). See also id. at 75209 (explaining the basis for the specific classes adopted by DOE).

While DOE acknowledges that non-compressor products differ from vapor-compression refrigeration products, DOE was unable to determine any basis on which separate product classes for non-compressor products would be appropriate. Under 42 U.S.C. 6295(q), DOE may establish product classes for groups of products that either: (1) Consume a different kind of energy from that consumed by other covered products; or (2) have a capacity or other performance-related feature which other covered products do not have, and such feature justifies a higher or lower standard from that which applies to other covered products. Non-compressor products consume electric energy input, as do vapor-compression products. DOE is also not aware of any performance-related feature associated with non-compressor products that vapor-compression products do not also offer. Accordingly, DOE maintains its determination in the direct final rule that separate product classes for non-compressor products are not appropriate.

The interested party also argued that the test methods for built-in and freestanding products should be different, with built-in products tested in an enclosure leading to higher energy consumption, and therefore a single maximum allowable AEU is not appropriate for both freestanding and built-in cooler product classes.

The MREF test procedures in 10 CFR part 430, subpart B, Appendix A (“Appendix A”) require that both freestanding and built-in products be tested in a freestanding configuration. Accordingly, Appendix A does not specifically lead to higher energy consumption for built-in products compared to freestanding products. Further, the standard levels specified in the direct final rule are consistent with those recommended by the MREF Working Group. The Working Group included multiple manufacturers, including manufacturers of built-in products, who determined that the same maximum AEU was appropriate for both built-in and freestanding coolers. Therefore, DOE has determined that the single maximum allowable AEU is appropriate for both freestanding and built-in coolers. Should DOE receive information in the future demonstrating that the test procedure requires modification to better address built-in products, DOE may revisit the test procedure at that time.

The interested party also commented that the cooler standard outlined in the direct final rule is too stringent. It compared the direct final rule standard level equation for coolers to the equation previously established by the California Energy Commission (“CEC”) for coolers sold in California, and concluded that the direct final rule standard is 50 percent more stringent than the CEC regulation. It further stated that the direct final rule standards would reduce the number of MREFs in the market.

DOE notes that the standards specified in the direct final rule and those in the CEC regulations are not directly comparable because they are based on energy consumption measured by different test procedures. Most significantly, the DOE test procedure in Appendix A applies a correction factor of 0.55 to the measured energy consumption of coolers to account for typical household usage. The test procedure used for the CEC regulations applies a usage factor of 0.85. Accounting for this difference alone, the DOE standard level from the direct final rule is equivalent to approximately 70 percent of the maximum allowable energy use in the CEC regulations. DOE observed that many coolers already achieve this efficiency level, including a non-compressor cooler tested by a third party in support of DOE's analysis, and that manufacturer recommendations from the Working Group supported a cooler standard at this level. Therefore, DOE concludes that the cooler standard is not too stringent and not likely to limit consumer purchasing options.

The interested party commented that for coolers at TSL 2, DOE forecasted results over the lifetime of products from 2019 to 2048, while the other TSLs considered the period from 2021 to 2050. Similarly, it noted that for combination cooler refrigeration products, DOE analyzed TSL 1 results over the lifetime of products from 2019 to 2048, and all other TSLs over the period from 2021 to 2050. The commenter noted that due to the different analysis periods used by DOE, the economic analysis and data comparing the different TSLs are unjust and unequal, leading to inaccurate economic analysis conclusions.

In the direct final rule, DOE analyzed TSLs other than TSL 2 for coolers and TSL 1 for combination cooler refrigeration products based on the 5-year compliance period typically provided when DOE establishes the first energy conservation standards for newly covered products. However, because TSL 2 for coolers and TSL 1 for combination cooler refrigeration products were based on the standard levels and compliance period recommended by the MREF Working Group, DOE analyzed a 3-year compliance period for these TSLs only. DOE's analysis for each TSL considered the 30-year period following the standards compliance date, so TSLs based on the Working Group recommendation considered the analysis period from 2019 to 2048, while the analysis period for the other TSLs was 2021 to 2050. In its analysis, DOE discounted future impacts to the year of the analysis, which allowed for a direct comparison of the projected impacts for each TSL despite the different compliance years and 30-year analysis periods. See chapter 10 of the direct final rule technical support document for a description of the national impact analysis. Therefore, DOE has determined that its conclusions are valid and provide sufficient support for the efficiency levels adopted in the direct final rule.

The interested party also requested clarification regarding the lifetimes of products assumed in the national impact analysis. It commented that a 30-year product lifetime would be too long, and suggested that DOE use a lifetime of approximately 12 years for products such as wine coolers.

In the direct final rule analysis, DOE did not assume a 30-year product lifetime; rather, it analyzed products sold over a 30-year period with a distribution of lifetimes. For full-size products (both coolers and combination cooler refrigeration products), DOE estimated a 17.4-year average lifetime, consistent with the average lifetime for full-size refrigerators and freezers. For compact products, DOE estimated a 10.3-year average lifetime based on manufacturer input. See 81 FR at 75219 and chapter 8, section 8.2.2.5 of the direct final rule technical support document. DOE maintains that these lifetime estimates are appropriate because they were supported by manufacturer feedback in the MREF Working Group.

EPCA directs DOE to consider any lessening of competition that is likely to result from new or amended standards. It also directs the Attorney General of the United States (“Attorney General”) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) For the direct final rule discussed in this document, DOE published a NOPR containing energy conservation standards identical to those set forth the direct final rule and transmitted a copy of the direct final rule and the accompanying technical support document (“TSD”) to the Attorney General, requesting that the U.S. Department of Justice (“DOJ”) provide its determination on this issue. DOE has published DOJ's comments at the end of this document.

DOJ reviewed the new standards in the direct final rule and the direct final rule TSD discussed in this document. As a result of its analysis, DOJ concluded that the new standards issued in the direct final rule are unlikely to have a significant adverse impact on competition. DOJ further noted that the standards established in the direct final rule were the same as recommended standards submitted in the consensus recommendations signed by industry participants who believed they could meet the standards (as well as other interested parties).

DOE notes that the direct final rule discussed in this document preceded Executive Order 16093's requirement to revise future analyses involving carbon monetization. See 82 FR 16093 (March 31, 2017). The direct final rule included an analysis that examined the impacts associated with the social cost of carbon. These values, which were ancillary to the primary analyses that DOE conducted to determine whether the standards adopted in the rule were justified under the statutory criteria prescribed under 42 U.S.C. 6295(o), did not change the results of DOE's analyses. Accordingly, while the inclusion of these values helped in providing additional detail regarding the impacts from the rule, those details played no role in determining the outcome of DOE's decision under EPCA.

Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has determined that this direct final rule fits within the category of actions included in Categorical Exclusion (“CX”) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)-(5). This rule fits within the category of actions because it is a rulemaking establishing energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for it. DOE's CX determination applying to this direct final rule is available at http://energy.gov/nepa/categorical-exclusion-cx-determinations-cx.

In summary, based on the discussion above, DOE has determined that the comments received in response to the direct final rule for new energy conservation standards for MREFs do not provide a reasonable basis for withdrawal of the direct final rule. As a result, the energy conservation standards set forth in that direct final rule became effective on February 27, 2017. Compliance with the standards articulated in that direct final rule is required on October 28, 2019.

As amended by the Energy Efficiency Improvement Act of 2015, Public Law 114-11 (April 30, 2015), the Energy Policy and Conservation Act (“EPCA” or, in context, “the Act”), Public Law 94-163 (42 U.S.C. 6291-6309, as codified), authorizes DOE to issue a direct final rule establishing an energy conservation standard for a product on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary of Energy (“Secretary”). That statement must contain recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o) or 42 U.S.C. 6316, as applicable. A notice of proposed rulemaking (“NOPR”) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule and a public comment period of at least 110 days provided. 42 U.S.C. 6295(p)(4). Not later than 120 days after issuance of the direct final rule, if DOE receives one or more adverse comments or an alternative joint recommendation is received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law.

When making a determination whether to withdraw a direct final rule, DOE considers the substance, rather than the quantity, of comments. To this end, DOE weighs the substance of any adverse comment(s) received against the anticipated benefits of the consensus recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously published NOPR. DOE must publish in the Federal Register the reasons why the direct final rule was withdrawn.

DOE determined that it did not receive any adverse comments providing a basis for withdrawal as described above for the direct final rule that is the subject of this document—dedicated purpose pool pumps (“DPPPs”). As such, DOE did not withdraw this direct final rule and allowed it to become effective. Although not required under EPCA, DOE customarily publishes a summary of the comments received during the 110-day comment period and its responses to those comments.1 This document contains such a summary, as well as DOE's responses, for DPPPs.

Prior to May 18, 2017, no Federal energy conservation standards existed for DPPPs. DOE excluded this category of pumps from its recent consensus-based energy conservation standard final rule for general pumps. 81 FR 4368 (January 26, 2016).

On July 29, 2016, DOE received a statement submitted by ASRAC that a consensus had been reached by a negotiated rulemaking working group for DPPPs (the “the DPPP Working Group” or, in context, the “Working Group”). The DPPP Working Group consisted of 13 members, including one member from ASRAC and one DOE representative, with the balance comprising representatives of manufacturers of the DPPPs, efficiency advocates, and a State representative. The DPPP Working Group submitted to ASRAC a Term Sheet, that, in the view of the Working Group, would satisfy the EPCA requirements at 42 U.S.C. 6295(o), and ASRAC voted unanimously to adopt these consensus recommendations. (DPPP Term Sheet, Docket No. EERE-2015-BT-STD-0008, No. 82)

After careful consideration of the DPPP Term Sheet related to amended energy conservation standards for DPPPs, the Secretary has determined that the recommendations contained therein are compliant with 42 U.S.C. 6295(o), and were submitted by interested persons who are fairly representative of relevant points of view on this matter, as required by 42 U.S.C. 6295(p)(4)(A)(i) for the issuance of a direct final rule.

DOE found that the standard levels recommended in the DPPP Term Sheet would result in significant energy savings and are technologically feasible and economically justified. Thus, energy conservation standards, definitions, and prescriptive requirements established in the DPPP direct final rule and articulated below in this notice directly reflect the June 2016 DPPP Working Group recommendations.

Tables II-1 and I-2 document the new standards for DPPPs established as a result of the direct final rule and the June 2016 DPPP Working Group recommendations. Standards for equipment classes in Table II-1 are performance-based, expressed in terms of weighted energy factor (“WEF”); standards in Table II-2 are prescriptive. These standards apply to all equipment listed in Tables II-1 and II-2 and manufactured in or imported into the United States starting on July 19, 2021.

Of the 11 substantive comments received in response to the direct final rule, 9 were from parties that expressed support for the direct final rule and its outcome. (All comments are available for public viewing at https://www.regulations.gov/docket?D=EERE-2014-BT-STD-0048.) Among these commenters, five manufacturers and one trade group all commented positively on finalizing the rule based on manufacturing certainty. In addition, they highlighted the significant economic benefits to consumers and ratepayers that the direct final rule would provide.

Other parties submitted comments that either expressed tentative support or no support for the DPPP direct final rule. The following sections discuss these specific comments and DOE's determination that the comments do not provide a reasonable basis for withdrawal of the direct final rule.

Four parties commented that they hesitated to support or stated they did not support the direct final rule, despite their participation in the DPPP Working Group and unanimous consensus to the DPPP Term Sheet, because the direct final rule did not address replacement motors. Two parties further encouraged DOE to initiate a working group to address specifically replacement pool motors.

In response, DOE notes that its direct final rule and Working Group only supported the development of energy conservation standards for DPPPs. DPPP replacement motors are not the subject of in this direct final rule. DOE appreciates that stakeholders have expressed support for adoption of the direct final rule as currently drafted, and notes that affected stakeholders have four-and-a-half years to take steps toward compliance with the DPPP standards, including forming a replacement pool pump motors working group. Thus, DOE plans to hold a public meeting in the near future with the interested parties to gather data and information that could lead to the consideration of energy conservation standards for replacement pool pump motors.

DOE received one substantive comment that alleged that the costs (regulatory and consumer) published in the DPPP direct final rule were too high. In particular, the commenter noted that the installation cost of a typical self-priming pool pump would increase by 77 percent, and that other pump categories will see price increases of anywhere between $9 and $66.

In response, DOE notes that all of these issues were discussed in detail during the Working Group negotiations. DOE's analysis accounted for the lower energy costs that the consumers would receive, which would add up to a lifetime cost saving of over $2,000 and an eight-month payback period. DOE also received a comment from a manufacturer that stated that 50 percent of the self-priming pool pumps on the market are already compliant, which suggests that the direct final rule's standards are technologically feasible and economically justified.

DOE notes that EPCA does not require it to choose the standard level with the least consumer cost, or the least cost to manufacturers, but only to assess those, among other, costs and benefits (using the 7 factors articulated at 42 U.S.C. 6295(o)) and determine whether the burdens outweigh the benefits. In this case, the recommended TSL met that standard, and DOE's analysis and conclusions would not change based on the comments received. Thus, DOE does not consider these comments to provide a basis to justify a withdrawal of this direct final rule under EPCA.

DOE received a comment from an independent control manufacturer who commented that the views of independent control manufacturers were not represented in the Working Group, and thus the Working Group Term Sheet did not represent a consensus agreement. The Working Group meetings were conducted transparently, and the commenter's concerns were raised by multiple Working Group members, discussed at length, and resolved.

EPCA directs DOE to consider any lessening of competition that is likely to result from new or amended standards. It also directs the Attorney General of the United States (“Attorney General”) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) For the direct final rule discussed in this document, DOE published a NOPR containing energy conservation standards identical to those set forth the direct final rule and transmitted a copy of the direct final rule and the accompanying technical support document (“TSD”) to the Attorney General, requesting that the U.S. Department of Justice (“DOJ”) provide its determination on this issue. DOE has published DOJ's comments at the end of this document.

DOJ reviewed the new standards in the direct final rule and the direct final rule TSD discussed in this document. As a result of its analysis, DOJ concluded that the new standards issued in the direct final rule are unlikely to have a significant adverse impact on competition. DOJ further noted that the standards established in the direct final rule were the same as recommended standards submitted in the consensus recommendations signed by industry participants who believed they could meet the standards (as well as other interested parties).

DOE notes that the direct final rule discussed in this document preceded Executive Order 13783's requirement to revise future analyses involving carbon monetization. See 82 FR 16093 (March 31, 2017). The direct final rule included an analysis that examined the impacts associated with the social cost of carbon. These values, which were ancillary to the primary analyses that DOE conducted to determine whether the standards adopted in the rule were justified under the statutory criteria prescribed under 42 U.S.C. 6295(o), did not change the results of DOE's analyses. Accordingly, while the inclusion of these values helped in providing additional detail regarding the impacts from the rule, those details played no role in determining the outcome of DOE's decision under EPCA.

Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has determined that this direct final rule fits within the category of actions included in Categorical Exclusion (“CX”) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)-(5). This rule fits within the category of actions because they are rulemakings establishing energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for it. DOE's CX determination applying to this direct final rule is available at http://energy.gov/nepa/categorical-exclusion-cx-determinations-cx.

In summary, based on the discussion above, DOE has determined that the comments received in response to the direct final rule establishing new energy conservation standards for DPPPs do not provide a reasonable basis for its withdrawal. As a result, the energy conservation standards set forth in that direct final rule became effective on May 18, 2017. Compliance with the standards articulated in that direct final rule is required on July 19, 2021.

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Embraer holds type certificate no. TC00062IB, which provides the certification basis for the EMB-550 airplane. The EMB-550 is a twin engine, transport category airplane with a passenger seating capacity of 12 and a maximum takeoff weight of 38,360 pounds.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the EMB-550 airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Embraer must show that the EMB-550 airplane meets the applicable provisions of the regulations listed in type certificate no. TC00062IB or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the EMB-550 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the EMB-550 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the EMB-550 airplane. Should Embraer apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Textron holds type certificate no. T00012WI, which provides the certification basis for the Model 680 airplane. The Model 680 is a twin engine, transport category airplane with a passenger seating capacity of 12 and a maximum takeoff weight of 30,300 to 30,775 pounds, depending on the specific design.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the Model 680 airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Textron must show that the Model 680 airplane meets the applicable provisions of the regulations listed in type certificate no. T00012WI or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model 680 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model 680 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the Model 680 airplane. Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Textron Model 680 airplane.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Airbus holds type certificate no. A46NM, which provides the certification basis for the A330-300 series airplanes. The A330-300 series airplanes are twin engine, transport category airplanes with a passenger seating capacity of 375 to 440 and a maximum takeoff weight of 405,650 to 533,518 pounds, depending on the specific design.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the A330-300 series airplanes. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Airbus must show that the A330-300 series airplanes meet the applicable provisions of the regulations listed in type certificate no. A46NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the A330-300 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the A330-300 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the A330-300 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Airbus Model A330-300 series airplanes.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On November 20, 2014, Textron applied for a type certificate for a new Model 700 airplane. The Model 700 is a twin engine, transport category airplane with a passenger seating capacity of 12 and a projected maximum takeoff weight of 38,514 pounds.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the Model 700 airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.17, Textron must show that the Model 700 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-139, 25-141 and 25-143.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Textron 700 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Textron Model 700 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123. Sections 25.1353(b)(1) through (4) at Amendment 25-123 remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the Textron Model 700 airplane. Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Boeing holds type certificate no. T00021SE, which provides the certification basis for the 787-9 series airplanes. The 787-9 is a twin engine, transport category airplane with a passenger seating capacity of 420 and a maximum takeoff weight of 557,000 pounds.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on 787-9 series airplanes. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Boeing must show that the 787-9 series airplanes meet the applicable provisions of the regulations listed in type certificate no. T00021SE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the 787-9 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the 787-9 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the 787-9 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 787-9 series airplanes.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0186; Directorate Identifier 2017-NE-07-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2017-0014, dated January 30, 2017 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0186.

RRD has issued Alert Non-Modification Service Bulletin (NMSB) Sp72-A1071, Revision 1, dated January 27, 2017. The Alert NMSB provides instructions to re-calculate the consumed and remaining service life for HPC stage 12 rotor disks, part number (P/N) EU25917, P/N EU56963, P/N JR10242, and P/N JR18449. This service information is available by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of Germany, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD requires reducing the maximum approved life limits and re-calculating the consumed and remaining service life for HPC stage 12 rotor disks P/N EU25917, P/N EU56963, P/N JR10242, and P/N JR18449.

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD affects 0 engines installed on airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2017-0072-E, dated April 26, 2017 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0451.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because improper heat treatment of the propeller front transmission gear wheels could cause the gear wheel to fail. This failure could cause loss of power between the engine and the propeller, which could result in reduced control. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0451; Directorate Identifier 2017-CE-015-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

There are approximately 50 Stemme AG Model S10-VT gliders of U.S. registry but only 14 serial numbers of the part number (P/N) 11AG front gearbox. Therefore, the most gliders of U.S. registry affected would be 14. According to Stemme AG, there are only 2 of the affected gearboxes installed on gliders of U.S. registery.

At the issue date of this AD, no design solution is available to restore the airworthiness of the respective type design to a level corresponding to its approved type design specifications. Therefore, the FAA cannot determine the cost of returning the affected gliders to service.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Kingsville NAS, Kingsville, TX.

On March 27, 2017, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to modify Class D airspace at Kingsville NAS, Kingsville, TX (82 FR 15172). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D airspace designations are published in paragraph 5000, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR part 71.1. The Class D airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is finalizing this amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class D airspace extending up to and including 2,500 feet MSL within a 4.3-mile radius of Kingsville NAS by removing the area within two miles each side of the 200 degree bearing from the Kingsville RBN extending from the 4.3-mile radius to 4.9 miles south of the airport. This action also updates the geographic coordinates of the airport to be in concert with the FAA's aeronautical database.

Airspace reconfiguration is necessary due to the decommissioning of the RBN and cancellation of the RBN approach, and enhances the safety and management of standard instrument approach procedures for IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Background

The Entity List (15 CFR, subchapter C, part 744, Supplement No. 4) identifies entities and other persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The Export Administration Regulations (EAR) (15 CFR, subchapter C, parts 730-774) imposes additional license requirements on, and limits the availability of most license exceptions for, exports, reexports, and transfers (in-country) to those listed. The license review policy for each listed entity or other person is identified in the License Review Policy column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register notice adding entities or other persons to the Entity List. BIS places entities and other persons on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote, and makes all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add sixteen persons to the Entity List. These sixteen persons are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The sixteen entries added to the Entity List consist of eleven entries located in Pakistan, three entries in Turkey and two entries in the United Arab Emirates (UAE).

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these sixteen persons to the Entity List. Under that paragraph, persons for whom there is reasonable cause to believe, based on specific and articulable facts, that they have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List. Paragraphs (b)(1) through (5) of § 744.11 provide an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

Of the eleven entries that are being added to the Entity List under the destination of Pakistan, the ERC determined that nine of the entities—MSN International, Creative Dynamics Engineering, FACO Trading, Interscan, Micado, Premier International, Sumico Technologies, Oriental Engineers and Imam Group—are government, parastatal and private entities involved in activities that are contrary to the national security and/or foreign policy interests of the United States. The ERC determined that for one entity, KMA International Import and Export Co., information is available indicating that the company is acting and procuring items on behalf of Abdul Qader Khan Research Laboratories (AQKRL). AQKRL was added to the Entity list on November 19, 1998 (63 FR 64322).

One of the Pakistani entities, Makkays Hi-Tech Systems, is being added to the Entity List, along with two persons under the destination of the UAE, Euromoto Middle East FZE and its owner, Talaat Mehmood. The ERC determined that Makkays Hi-Tech Systems directed Euromoto Middle East FZE and Talaat Mehmood to supply U.S.-origin items, without obtaining the necessary licenses, to Pakistan's Advanced Engineering Research Organization (AERO). AERO was added to the Entity List on September 18, 2014 (79 FR 5999), based on its involvement in the procurement of sensitive U.S. technology in support of Pakistan's development of its missile and strategic unmanned aerial vehicle (UAV) programs.

This final rule also adds three persons located in the destination of Turkey—ERA Metalurji San. Ve Tic. Ltd. Sti., Mehmet Cingi and Cenk Ozturk—to the Entity List. These persons are being added on the basis of their involvement in the reexportation of U.S.-origin metal alloy powders with aerospace, missile and nuclear applications to Iran without the required license, in violation of both the EAR and the Department of the Treasury's Iranian Transactions and Sanctions Regulations (ITSR).

Pursuant to § 744.11(b) of the EAR, the ERC determined that the conduct of these sixteen persons raises sufficient concern that prior review of exports, reexports or transfers (in-country) of all items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR.

For the sixteen persons added to the Entity List, BIS imposes a license requirement for all items subject to the EAR, and a license review policy of presumption of denial. The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. The acronym “a.k.a.” (also known as) is used in entries on the Entity List to identify aliases and help exporters, reexporters and transferors to better identify persons on the Entity List.

This final rule adds the following sixteen persons to the Entity List:

This final rule implements a decision of the ERC to modify two existing entries on the Entity List under the destinations of China and Hong Kong. The modifications include the addition of the name Xianfa Lin to two existing entries and the identification of the previously listed name (Alpha Lam) in these entries as an alias. This final rule does not make any other changes to these two entries, except for revising the Federal Register citation column to reflect this modification. The license requirement for these two existing entries remains for all items subject to the EAR and the license review policy remains a presumption of denial.

This final rule makes the following revisions to two entries on the Entity List:

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on May 26, 2017, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).

Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016), has continued the EAR in effect under the International Emergency Economic Powers Act (15 U.S.C. 1701 et seq.). BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications, and carries a burden estimate of 43.8 minutes for a manual or electronic submission.

Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. For the sixteen persons added to the Entity List in this final rule, the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation and a 30-day delay in effective date are inapplicable, because this regulation involves a military or foreign affairs function of the United States (5 U.S.C. 553(a)(1)). BIS implementation of this rule is necessary to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in-country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, the entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the Entity List, which could create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, including taking steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing on the Entity List once a final rule is published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule.

5. The Department finds that there is good cause under 5 U.S.C. 553(b)(3)(B) to waive the provisions of the Administrative Procedure Act (APA) requiring prior notice and the opportunity for public comment for the two modifications included in this rule because, as described above, they are impracticable and are contrary to the public interest. In addition, these two changes are limited to the addition of the name of an entity on the Entity List under two entries, which will assist the public in more easily identifying this listed person on the Entity List.

6. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

The owner of the bridge, the Massachusetts Department of Transportation, requested a temporary deviation from the normal operating schedule to facilitate a public fireworks event.

The Massachusetts Department of Transportation (Craigie Bridge), mile 1.0, across the Charles River, has a vertical clearance of 5 feet at mean high water and 15 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.591(e).

This temporary deviation will allow the bridge to remain closed from 11 p.m. July 4, 2017 to 1 a.m. on July 5, 2017. The waterway is used primarily by seasonal recreational vessels and occasional small commercial traffic. Coordination with waterway users has indicated no objections to this short-term closure of the draw.

Vessels that can pass under the bridge without an opening may do so at all times. The bridge will be able to open for emergencies. There is no alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The bridge owner, Vermont Agency of Transportation, requested a temporary deviation from the normal operating schedule of the US2 Bridge, mile 91.8, across Lake Champlain at North Hero Island, Vermont. The drawbridge navigation span has a vertical clearance of 18 feet at ordinary high water in the closed position. The existing bridge operating regulations are found at 33 CFR 117.993(b). The waterway is transited by seasonal recreational vessels of various sizes. Several marina facilities are in the area of the bridge.

In response to the request, the Coast Guard's First District has approved a deviation from 8 a.m. on May 18, 2017 to 8 p.m. on October 15, 2017, to conduct repairs to extend the life of the machinery which operates the drawbridge. During this deviation, the US2 Bridge shall open on signal only on the hour from 8 a.m. to 8 p.m.

Vessels that are able to pass under the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies, and for vessels unable to pass through the bridge in the closed position there is an alternate route to the north under the Alburg Passage US2 fixed bridge. The Alburg Passage US2 Bridge has a vertical clearance of 26 feet at ordinary high water. The Coast Guard will inform the users of the waterway through our Local Notice and Broadcast Notice to Mariners of the change in operating schedule so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The owner of the bridge, the Massachusetts Department of Transportation, requested a temporary deviation from the normal operating schedule to facilitate a road race. The Granite Avenue Bridge, mile 2.5, across Neponset River, has a vertical clearance of 6 feet at mean high water and 16 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.611.

The temporary deviation will allow the Granite Avenue Bridge to remain closed from 9:30 a.m. through 11:30 a.m. on June 18, 2017. The waterway is used primarily by seasonal recreational vessels. Coordination with waterway users has indicated no objections to the proposed short-term closure of the draw.

Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will be able to open for emergencies. There is no alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Port of Los Angeles has requested a temporary change to the operation of the Henry Ford Avenue railroad bridge, mile 4.8, over Cerritos Channel, at Long Beach, CA. The drawbridge navigation span provides a vertical clearance of 6 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.147(b). Navigation on the waterway is commercial, search and rescue, law enforcement, and recreational.

The drawspan will be secured in the closed-to-navigation position from 6:30 p.m. on May 27, 2017 to 6:30 p.m. on June 10, 2017, to allow the bridge owner to replace the operating machinery. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies with between 4 to 24 hours advance notice. Los Angeles Harbor can be used as an alternate route for vessels. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

During the October 5 to 14, 2015, meeting of the Governing Bodies of the World Intellectual Property Organization (WIPO), the PCT Assembly adopted a number of amendments to the PCT Regulations having various dates of entry into force. See report adopted by the 47th Assembly of the PCT Union, available at http://www.wipo.int/edocs/mdocs/govbody/en/pct_a_47/pct_a_47_9.pdf. This final rule implements the changes to PCT Rules 12bis, 23bis, and 41, concerning the transmittal by the Receiving Office (RO) to the International Searching Authority (ISA) of documents relating to an earlier search or classification. Pursuant to 35 U.S.C. 361, the USPTO is required to perform all acts connected with the discharge of duties required of an RO. Accordingly, the USPTO is amending the rules of practice to implement these adopted PCT rules. These adopted rules were published in the May 12, 2016, issue of the PCT Gazette at pages 95-99, available on WIPO's Web site at http://www.wipo.int/pct/en/official_notices, and will apply to international applications having an international filing date on or after July 1, 2017.

Under the current PCT rules, applicants can request the ISA to take into account the results of an earlier search carried out by the same or another ISA or by a national office. See PCT Rule 4.12. Applicants making such a request must submit to the RO a copy of the results of the earlier search, subject to certain exceptions. One exception is where the office acting as the RO has performed the earlier search, the applicant may request the RO to transmit a copy of the results of the earlier search to the ISA rather than submit a copy of the results to the RO. See current PCT Rule 12bis.1(c). Submission of a copy of the results of the earlier search to the RO is also not required where the earlier search was carried out by the same ISA or by the same office as that which is acting as the ISA. See current PCT Rule 12bis.1(d). Nor is the submission of a copy of the results of the earlier search to the RO required where a copy of the search results is available to the ISA in a form and manner acceptable to it, for example, from a digital library. See current PCT Rule 12bis.1(f). The USPTO, in its capacity as an ISA, currently does not obtain a copy of the results of an earlier search pursuant to Rule 12bis.1(f).

As explained above, the mechanism under the current PCT rules for providing an ISA with a copy of the results of an earlier search is applicant driven. In addition, the current PCT rules do not specifically provide for the transmittal by the RO to the ISA of a copy of the results of any earlier classification available to the RO. To help reduce the workload of ISAs and improve the quality of international search reports, the PCT Regulations were amended to increase the availability of the results of an earlier search or earlier classification to ISAs by providing an Office driven mechanism for furnishing such information to ISAs. A summary of the new PCT Regulations are provided as follows.

New PCT Rule 23bis.1 concerns the transmittal of documents relating to an earlier search where the applicant has made a request under PCT Rule 4.12 that the ISA take into account the results of an earlier search. Rule 23bis.1(a) provides that the RO shall transmit to the ISA, together with the search copy (see PCT Article 12(1); PCT Rule 23), any copy referred to in Rule 12bis.1(a) related to an earlier search in respect of which the applicant has made a request under Rule 4.12, provided that any such copy: (i) Has been submitted by the applicant to the RO together with the international application; (ii) has been requested by the applicant to be prepared and transmitted by the RO to the ISA; or (iii) is available to the RO in a form and manner acceptable to it, for example, from a digital library, in accordance with Rule 12bis.1(d). Rule 23bis.1(b) further provides that, if the results of any earlier classification are not included in the copy of the results of the earlier search referred to in Rule 12bis.1(a), the RO shall also transmit to the ISA, together with the search copy, a copy of the results of any earlier classification effected by that office, if available.

New PCT Rule 23bis.2 provides for the transmittal by the RO to the ISA of the copy of the results of an earlier search or earlier classification in respect of an earlier application for which priority is claimed in the international application, where the earlier application is filed with the same office that is acting as the RO and that office has carried out an earlier search in respect of the earlier application or has classified the earlier application. Under this provision, transmittal of a copy of the results of an earlier search or earlier classification by the RO to the ISA will not be required in the following circumstances: (1) Where an RO has notified the International Bureau by April 14, 2016, that it may, on the request of the applicant submitted together with the international application, decide not to transmit the results of an earlier search (Rule 23bis.2(b)); (2) where the earlier search was carried out by the ISA or where the RO is aware that the results are available to the ISA (Rule 23bis.2(d)); and (3) where, to the extent that on October 14, 2015, the transmission of the copies referred to Rule 23bis.2(a) without the authorization by the applicant is not compatible with the national law applied by the RO, the provisions of PCT Rule 23bis.2(a) will not apply with respect to any international application filed with that RO for as long as such transmission without the authorization by the applicant continues not to be compatible with that law, provided that the RO informed the International Bureau accordingly by April 14, 2016 (PCT Rule 23bis.2(e)).

Under the national law of the United States, unpublished applications for patents are generally required to be kept in confidence by the USPTO and no information concerning the same given without authority of the applicant or owner. See 35 U.S.C. 122; 37 CFR 1.14. Accordingly, the USPTO has notified the International Bureau pursuant to PCT Rule 23bis.2(e) that it will not transmit the copies referred to in Rule 23bis.2 to the extent that the national law of the United States requires that patent applications that have not been published must be kept in confidence unless specifically authorized by the applicant. See the October 20, 2016, issue of the PCT Gazette at pages 210-13, available at http://www.wipo.int/export/sites/www/pct/en/official_notices/officialnotices16.pdf.

The following is a discussion of the amendments to 37 CFR part 1, made pursuant to the amendments to the PCT Regulations.

37 CFR 1.453: In general, § 1.453 is added to provide the procedures for the transmittal by the USPTO in its capacity as an RO of documents relating to an earlier search or earlier classification in accordance with amendments made to the PCT Regulations that will take effect on July 1, 2017.

Section 1.453(a) implements the provisions of new PCT Rule 23bis.1 by providing that, where an applicant has requested in an international application filed with the United States Receiving Office (RO/US) pursuant to PCT Rule 4.12 that an ISA take into account the results of an earlier search, the RO/US shall prepare and transmit to the ISA, as applicable, a copy of the results of the earlier search and any earlier classification as provided under PCT Rule 23bis.1. As discussed above, the applicant driven mechanism of PCT Rule 23bis.1 differs from the current applicant driven PCT mechanism by further providing for the automatic transmittal by the RO to the ISA of a copy of the results of any earlier classification effected by the RO. Also, consistent with the USPTO's current practice as an ISA, the USPTO, in its capacity as an RO, does not at the present time contemplate obtaining a copy of the results of an earlier search pursuant to PCT Rule 23bis.1(a)(iii), for example, from a digital library.

Section 1.453(b) implements the provisions of PCT Rule 23bis.2 by providing that, where an international application filed with the RO/US claims the priority of an earlier application filed with the USPTO in which the USPTO has carried out an earlier search or has classified such earlier application, the RO/US shall prepare and transmit to the ISA a copy of the results of any such earlier search and earlier classification as provided under PCT Rule 23bis.2. This automatic process is triggered based on the presence of a priority claim in the PCT application to an application in which the USPTO carried out an earlier search or has classified the earlier application.

The RO/US will not retrieve the results of an earlier search or earlier classification conducted by an office other than the USPTO. Section 1.453(c), therefore, is limited to applications held in confidence by the USPTO and is not directed to applications held in confidence by offices other than the USPTO. In accordance with the requirements of 35 U.S.C. 122 and the aforementioned notification under PCT Rule 23bis.2(e) by the USPTO, § 1.453(a) and (b) are subject to the provisions of § 1.453(c), which provides that the RO/US will not prepare a copy of the results of the earlier search or earlier classification referred to in § 1.453(a) or (b) for transmittal to an ISA from an application preserved in confidence by the USPTO under § 1.14 unless the international application contains written authority granting the ISA access to such results. Section 1.453(c) further provides that such written authority must be signed by an applicant in the international application who is also an applicant in the application preserved in confidence or by a person set forth in § 1.14(c) permitted to grant access to the application preserved in confidence. The Office anticipates that the PCT Request form (PCT/RO/101) will be revised to provide the option to include written authority therein. The provisions of § 1.453(c) will permit, inter alia, an applicant in the international application to sign the written authority (either directly or through applicant's representative (§ 1.455)), provided that applicant is also an applicant in the application that is preserved in confidence.

A. Administrative Procedure Act: This final rule implements changes made to the Regulations under the PCT and involves changes to the rules of agency practice and procedure and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))).

Alternatively, the provisions of the Administrative Procedure Act requiring prior notice and opportunity for public comment are inapplicable because this rulemaking involves a military or foreign affairs function of the United States. See 5 U.S.C. 553(a)(1). The USPTO, in its capacity as an RO, is required to perform all acts connected with the discharge of duties required of an RO. See 35 U.S.C. 361. This final rule adopts changes required to conform the rules of practice for international applications to the amendments to the PCT Regulations, which will become effective on July 1, 2017. Thus, this final rule is covered by the foreign affairs function exception of 5 U.S.C. 553(a)(1) and may be adopted without prior notice and opportunity for public comment. See Int'l Brotherhood of Teamsters v. Pena, 17 F.3d 1478, 1486 (D.C. Cir. 1994).

B. Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is required. See 5 U.S.C. 603.

C. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

Because this rulemaking has been determined to be not significant for purposes of Executive Order 12866, the requirements of Executive Order 13771 (Jan. 30, 2017) do not apply. See Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs,” at page 3 (OMB mem.) (April 5, 2017). Alternatively, this final rule is not subject to Executive Order 13771 as it does not meet the definition of “regulation” or “rule” under Section 4 of Executive Order 13771, which excludes regulations issued with respect to a military, national security, or foreign affairs function of the United States.

D. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

E. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

F. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

G. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

H. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

I. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

J. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), prior to issuing any final rule, the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this notice are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this notice is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

K. Unfunded Mandates Reform Act of 1995: The changes set forth in this notice do not involve a federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

L. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

M. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

N. Paperwork Reduction Act: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This rulemaking involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). The collection of information involved in this rule has been reviewed and previously approved by OMB under control number 0651-0021.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

For the reasons set forth in the preamble, 37 CFR part 1 is amended as follows:

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2017 rock sole and yellowfin sole CDQ reserves specified in the BSAI are 5,040 metric tons (mt), and 16,478 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826; February 27, 2017). The 2017 rock sole and yellowfin sole CDQ ABC reserves are 11,556 mt and 11,428 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826; February 27, 2017).

The Aleutian Pribilof Island Community Development Association has requested that NMFS exchange 700 mt of yellowfin sole CDQ reserves for 700 mt of rock sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 700 mt of yellowfin sole CDQ reserves for 700 mt of rock sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826; February 27, 2017), are revised as follows:

This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Aleutian Pribilof Island Community Development Association in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 18, 2017.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.